A patent is a government grant of rights over an invention, giving the grantee the authority to exclude others from making, using, offering for sale, or selling the invention in the United States or from importing the invention into the United States. Patents are granted by the United States Patent and Trademark Office (USPTO) after a review process. There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
Patents typically last 20 years from the date of application. After the initial application, the patent application undergoes a rigorous examiniation process before the USPTO which can take months or even years to approve.
Secondary sources can be an excellent place to start your research. They typically give you an overview of the application of the law, some history, citations to primary sources, and analysis on unsettled points of law. Treatises can be an especially good choice for patent law research because there are several that closely track the Title 35 and provide citations and analysis of nearly all primary law on point. The following treatises are generally regarding as leading authorities:
Deskbooks and practice guides are another good place to start your research, especially if you are unfamiliar with Patent Law and are looking for a straightforward introduction to this area of the law. These tools can also be especially helpful for understanding how to address practical issues such as filing registrations with the Copyright Office, drafting industry-specific licensing agreements, or drafting cease-and-decist letters for specific uses. Some of the most useful titles in the UNC collection include:
The United States' patent laws are codified in Title 35 of the United States Code. The text of the Act, including amendments, is available online in a number of places, including freely from the U.S. Government Publishing Office and from the Cornell Legal Information Institute. Title 35 has been enacted by Congress as a positive law title, meaning that this U.S. Code title is legal evidence of the law (read more about the distinction between positive law and non-positive law titles here).
While free versions of Title 35 are available online, for most serious research questions it will be more efficient to access this Title through subscription databases that offer citator services, listing cases, regulations, and secondary sources that cite to particular sections of the Act. Two of the best and most frequently used are Westlaw's KeyCite, Lexis+'s Shepards Reports. Those two services also offer statutory annotations ("Notes of Decision" in Westlaw, and "Annotations," located at the bottom of the screen, in Lexis+) which categorize and summarize cases that have interpreted specific statutory text. As with any statutory research, consider using the table of contents and internal cross-references rather than just full-text searches to help guide your research through the statutory scheme enacted by Congress.
Title 37, CFR contains regulations covering patent, trademark and copyright. Although a highly technical area of the law, the regulatory authority of the USPTO is limited and so regulations covering patents are minimal, mostly covering the process of application and issues such as representation before the USPTO. Title 37 is also available online through the US Government Publishing Office (PDF and e-CFR) and from the Cornell Legal Information Institute.
Through its website, USPTO publishes a number of extremely useful resources for both individuals and lawyers practicing in this area. Among the most useful are:
The Patent Trial and Appeal Board (PTAB) is housed within the USPTO. Its duties review of adverse decisions, review of appeals of reexaminations, derivation proceedings, inter partes and post-grant reviews, and rendering decisions on interferences.Through its website you can find:
In addition to the law governing patent application and enforcement, it is also important to be able to find and research patents themselves. Reseraching prior patents can be a complex process; it is not unusual to pay significant search fees. The following sources can help you locate and research patent history:
